ARCHIVED: Responses to Questions from Senator Wendell

PrintEmail

RESPONSES FROM ROBERT L. OAKLEY,
WASHINGTON AFFAIRS REPRESENTATIVE FOR
THE AMERICAN ASSOCIATION OF LAW LIBRARIES,

TO QUESTIONS FOR THE HEARING RECORD FROM
SENATOR WENDELL FORD, RANKING MINORITY MEMBER,
SENATE COMMITTEE ON RULES AND ADMINISTRATION

Question 1: Critics of the Government Printing Office have complained that its centralized system of print production and procurement is essentially a monopoly and creates inefficiencies and ineffectiveness. This argument appears to ignore the relationship between centralized production and effective public dissemination.

What are the potential risks to dissemination, and the impact on the public's right to access government information, if print production and procurement is decentralized?

Response:
I noted in my testimony of July 29, 1998 before the Committee that it has been the experience of the library and user communities that the dual functions of the Government Printing Office--as a centralized production and procurement system coupled with a centralized distribution system--have historically been the most effective and efficient means of producing and distributing tangible government information products. Tangible government information products include a variety of different formats, such as print, microfiche, floppy disc or CD-ROM. These publications are distributed to federal depository libraries at no fee, thus ensuring broad, equitable and convenient public access for all Americans. This centralized system additionally allows many titles to be made available at reasonable cost to the public through the GPO Sales Program.

When print production and procurement are decentralized, and agencies produce tangible government publications outside of the GPO, these publications very often are not made available for distribution to depository libraries by the issuing agency. Nor do they become available through the GPO Sales Program--they become, in effect, "fugitive documents." The result is a loss to the public of important government publications that have been created by agencies through taxpayer dollars. It nullifies the important principle to which each of us is committed--that our democracy is based on the right of all American citizens to be informed about their government and to participate in its activities.

In my testimony, I cited several examples of titles that agencies produce today outside of the GPO, often through the private sector, that are not provided to depository libraries. In a few cases, criticism from the library and user communities, coupled with strong congressional oversight, have succeeded in putting some of these titles back into the FDLP. Nonetheless, the examples that I used in my testimony serve to illustrate the loss of government publications to the public when the important link between production or procurement and dissemination is severed.

In addition, the public's right to access government information is denied when agencies follow a decentralized model such as the National Technical Information Service (NTIS) and the Federal courts. With the exception of Supreme Court opinions that are produced through GPO and distributed to depository libraries as both slip opinions and the official bound United States Reports, American citizens today cannot access opinions published by the Federal courts through the FDLP. The scientific and business publications produced by NTIS that provide valuable and timely information about business and the economy, research and development, also are not made available through the depository library program. These models of decentralized production and procurement --and the resulting loss of public access--demonstrate the need for central coordination for the production and procurement of tangible government publications.

The library community is pleased that S. 2288 contains provisions that agencies in all three branches of government use the GPO for the production or procurement of tangible government publications, or request a delegation of authority so that publications produced outside of GPO do not become "fugitive documents." We are equally pleased that this legislation repeals all current waivers within 120 days while allowing agencies to request a new delegation of authority that is linked to their dissemination obligations. This will effectively ensure that agencies seeking a delegation of authority recognize their responsibilities under Chapter 19 to notify the new Superintendent of Government Publications Access Programs so that all publications, in all formats, from all branches of government, are made available through the newly-named Federal Publications Access Program.

Question 2: For the last couple of years, the Department of Justice has argued that the administrative functions of the Joint Committee on Printing over GPO are unconstitutional. Consequently, the Administration has suggested that title 44 is not enforceable against executive agencies. However, the Administration has also agreed to "voluntarily" comply with provision of title 44 as long as negotiations were ongoing regarding reform legislation.

Negotiations between Committee staff and staff of the Office of Management and Budget occurred over about the last 18 months and resulted in a draft bill which was roundly criticized. OMB subsequently disavowed that effort, and the Committee moved forward with negotiations with other interested parties.

It is not clear whether OMB still intends to require executive branch agencies to "voluntarily" comply with title 44. My hope is that representatives of OMB will come to the table over the next few weeks and give us the opportunity to work out some of their issues. I believe the legislation Chairman Warner and I introduced accommodates their needs, but we stand ready to listen to their needs.

However, if we are unable to pass title 44 reform legislation this year, what do you envision will be the short term, and long term, impact on the public's access to government information?

Response:
The library community is united in the belief that S. 2288 must be passed this year to strengthen the current Federal Depository Library Program and to enhance public access to both tangible publications and those created or transmitted through an electronic communications system or network. We hope that negotiations between the Committee and the Office of Management and Budget will result in the Administration's full support of this important legislation. Both the short and long term impact of the failure to enact S. 2288 this year will deny the American public their right to government publications from all three branches of government.

The overarching principles for federal government information, developed as part of the Study to Identify Measures Necessary for a Successful Transition to a More Electronic Federal Depository Library Program (GPO, 1996) in which the library community participated, are as follows:

 

Principle 1:
The Public Has the Right of Access to Government Information
Principle 2:
The Government Has an Obligation to Disseminate and Provide Broad Public Access to its Information
Principle 3:
The Government has an Obligation to Guarantee the Authenticity and Integrity of Its Information
Principle 4:
The Government Has an Obligation to Preserve Its Information
Principle 5:
Government Information Created or Compiled by Government Employees or at Government Expense Should Remain in the Public Domain

These rights of the American public are at the very foundation of our democratic society. We urge Congress, the Administration, and the Judiciary to recommit themselves to these basic principles so that the enactment of S. 2288 will be expeditious and unanimously supported.

If S. 2288 is not enacted this year, the short term impact on public access to government publications will be that agencies will continue to produce materials in-house or will increasingly follow current trends toward the commercialization and privatization of their publications. Today, more and more agencies ignore Title 44 and seek private sector partners to produce their publications, often failing to fulfill their responsibility to disseminate these publications through the FDLP. In addition, the commercialization and privatization of government publications often result in copyright restrictions, or in the case of electronic publications, in the use of proprietary software or other licensing restrictions that prohibit broad public access.

Further, without the enactment of S. 2288, no government entity will be responsible for coordinating permanent public access to the publications that are created for or transmitted through an electronic communications system or network. The disappearance of valuable publications from agency Web sites will increase and the public's right to government information not only today but for future generations will be lost. Agencies will increasingly use the Internet to disseminate discrete publications but will have no legislative mandate to provide access to these materials in the future.

To demonstrate the extent of this problem today, please allow me to add to the public record, along with my responses to your questions, a list compiled this month of "Electronic information no longer available on the Internet" (http://www.lib.berkeley.edu/GODORT/9808missing.html).

The Superintendent of Documents today lacks the authority to ensure permanent public access to government publications that agencies create for or transmit through an electronic communications system or network. Tangible publications distributed to depository libraries throughout the nation are preserved under the trusteeship of these institutions. But the move to more government publications created for agency Web sites and made available through the Internet shifts the responsibility for permanent pubic access back to the government. We are pleased that S. 2288 places this important coordinating responsibility with the new Superintendent of Government Publications Access Programs.

If S. 2288 is not enacted this year, the long term impact on public access to government publications will be devastating. Chaos will reign if agencies who choose not to comply with Title 44 are allowed freely to determine how and by whom their publications will be created and disseminated. I envision a scenario in which the production and procurement functions of GPO would be diminished; the number of fugitive publications would multiply at an alarming rate; American citizens would have no coordinated means of locating and using government publications; and the future of the Federal Depository Library Program would be in jeopardy. The loss of central coordination and the lack of oversight and strong enforcement measures will have a lethal long term effect on public access to government publications.

We believe that the enactment of S. 2288 this year is imperative. Failure to enact this important legislation will send a message to the American public--your constituents--that their government is abrogating its responsibility to ensure the public's right to know that is vital to our democracy. The current trends that result in "fugitive documents," and in commercial entities becoming the producers and owners of government information, will increase to the point where they cannot be stopped. In addition, current and future users of government information will hold their government responsible for its lack of foresight and action in not taking the necessary steps to preserve long term access to electronic government publications.

Congress, the Administration and the Judiciary together must reaffirm their responsibilities to provide current and future no-fee public access to their publications through the new Federal Publications Access Program. S. 2288 is the legislative package that systematically will coordinate the dissemination of government publications in all formats and from all three branches of government, and will ensure that they are available today, tomorrow and for future generations.

August 21, 1998